Right now, anyone who works for a branch of the United States military cannot sue on the grounds of medical malpractice after receiving negligent care from a government-operated facility. The basis of the law is simple: When someone volunteers for service, that person is basically signing his or her life away to the government. You get a sunburn, and technically you can be reprimanded. Because those people own you.
But the law might soon change to allow service members to sue for medical malpractice just like anyone else. Okay, well, technically that’s not true. They won’t be able to sue, but a review panel put together by the Secretary of Defense could authorize the Pentagon to pay out “redress” claims for injuries sustained due to negligent healthcare. But that’s basically the same thing for victims.
A committee explained that the proposal “authorizes the Secretary of Defense to allow, settle, and pay an administrative claim against the United States for personal injury or death of a member of the uniformed services that was the result of medical malpractice caused by a Department of Defense health care provider.”
This new law was included as a component of the National Defense Authorization Act of 2020. The NDAA would provide $738 billion in new military spending and increase military pay 3.1 percent across the board.
National Military Family Association government relations director Kelly Hruska said, “We’re curious to see the process that will be established. Our association supports elimination of Feres.”
The change in law stems from a claim arguing against the long abided-by Feres Doctrine. Special Forces Sergeant 1st Class Richard Stayskal complained of ongoing pain for months and was misdiagnosed repeatedly by a number of government-paid doctors.
Representative Jackie Speier (D-CA) chairs the House Armed Services subcommittee on personnel. She took note of Stayskal’s case and subsequently sponsored the new malpractice adjustments. Speier said that Stayskal “forged a bipartisan coalition to achieve this legislative breakthrough through his countless visits to [Congress] and heroic advocacy.”
Speier did, however, raise concerns that the Department of Defense and SecDef might not be the right ones to run this new claims process, but that they would just have to wait and see how it goes. “It was important that we seize this unique political moment,” she said.
The new law places restrictions on how much attorneys can make from the new process, and restricts their payouts to 20 percent of whatever is awarded to the plaintiffs — but more importantly, the DoD is not responsible for paying those fees, which means the dollar amount will not be increased to reflect lawyer’s fees.